In a way, the idea that the Supreme Court would overturn their landmark ruling in the Citizens United case, in just two years’ time, with the same personnel on the Court based on a state Supreme Court holding in Montana, of all places, was pretty fanciful. And the Court did not surprise anyone.
They quickly and quietly reversed the Montana ruling which banned corporate contributions to political campaigns. Montana didn’t provide any new information from after the Citizens United ruling to bolster their argument. So the same five Justices made the same decision. “The Court is reaffirming their refusal to recognize reality,” said Rob Weissman of Public Citizen, in an interview shortly after the ruling was announced.
In fact, it’s not entirely clear that it’s a loss for the Court to refuse to take up American Tradition Partnership, Inc. v. Bullock and to just summarily overturn the ban on corporate contributions. As Rick Hasen points out today, taking the case could have easily made things worse. Citizens United itself wound up with its ruling after looking at the case in a far greater scope than what the lawyers argued at court. They found things in that ruling that were not anticipated by the case. And that would have been possible in American Tradition Partnership, Inc. v. Bullock as well. For example, the Court could have found that limits to direct corporate contributions to candidates are unconstitutional.
Given the members of the Supreme Court we have now, and the fact that they are unmoved by the heavily negative public opinion of the Citizens United ruling, there’s no reason to believe that they wouldn’t have jumped at an opportunity to actually do more damage to campaign finance laws. That doesn’t mean that you don’t work to change the law, but it might mean that you pick a different venue. Weissman of Public Citizen doesn’t even believe that a scandal showing the breakdown in campaign finance and the opportunities for corruption under the new iteration of the law would move the Court.
“The underlying logic of Citizens United is so self-reinforcing, it’s not clear that a scandal would move them,” Weissman said. “They would say the scandal was around the edges.” However, Weissman added, you cannot pretend the Supreme Court doesn’t exist, and operate like they aren’t there, when cases like this come up, with a possibility to overturn the worst aspects of current campaign finance law.
One solace for reform-minded types is that Justice Kagan joined the dissent, which essentially said that there’s no point in re-litigating this at this time because the majority will simply uphold. There was some thought that Kagan wasn’t fully committed to overturning Citizens United, because of some law articles she previously wrote. But she looks firmly in the camp at this point, meaning there are four solid votes to overturn.
Outside of a change of personnel on the court, however, reformers will have to look to Congress, and possibly a Constitutional amendment on campaign finance matters. A coalition of groups under the “Move to Amend” banner have built a grassroots movement for a Constitutional amendment, with a focus on state and local resolutions of support, on city councils and in state legislatures. There are also moves in Congress, where the amendment concept has the endorsement of 1/4 of the Senate, over 100 members of the House and the President of the United States. There doesn’t seem to be total consensus on what that amendment looks like yet. But Rob Weissman says that the coalition is being built “in response to unending, unfolding disaster of Citizens United, and in response to the grassroots call for action.”
UPDATE: Nancy Pelosi’s statement lays out the Democratic game plan here:
“Democrats are committed to restoring transparency, accountability, openness, and fairness to our political process. Our strategy is simple: we must DARE – to fight for disclosure and shine a bright light on secret donations; to amend the Constitution to overturn the crushing Citizens United ruling; to reform the system and empower small donors and the grassroots; and to elect reform-minded candidates and leaders to office.
The DISCLOSE Act has foundered since failing by one vote in the Senate in 2010.
UPDATE II: Public Citizen has written in to straighten out some of the alphabet soup among different organizations working on responses to Citizens United. Move to Amend is a chapter-based organization that has done work on local resolutions on amending the Constitution, particularly on corporate personhood. Public Citizen is part of a separate coalition called United for the People, a multi-part organization that is also working on Constitutional remedies to Citizens United at the state, local and federal levels. Why there are two separate grassroots organizations is anyone’s guess, but there are two separate organizations.




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From Election Law Blog:
Which means that whoever gets to pick Scalia’s replacement when he retires is of paramount importance.
Since Kagan was Solicitor General and argued Citizens United in the SC in 2009, would she have to recuse herself on a case to overturn?
Government for sale to the rich and the corporatists will be the norm for soime time to come.
You mean you trust Elena Kagan? The same Elena Kagan who argued before SCOTUS that a lawyer filing suit in an attempt to prove that his client wasn’t a terrorist would be guilty of giving “material support to terrorism”? That lying sack of shit corporatist Elena Kagan?
And Nancy Pelosi says we must DARE to do something?!
I got a good one: how about you DARE to oppose Simpson-Bowles?
David, I would like to write something about the public finance statutes in NM, but I am really not qualified to write about the legal intricacies. However, we have some public financing available now that has allowed a variety of people to run for office at state and local levels with public money. It is going to be thrown out, unfortunately, and I don’t know when it happens.
Let me just mention that we had an appellate judge candidate and two candidates running for the state Public Regulation Commission who ran in the primary with public financing. It was a giant battle with late night hearings just days before our primary election on June 5 to get our R Secretary of State (in collusion with our terrible R Governor) to release the funds that were required under the public financing statute. It is a great story, and one that has an interesting outcome, but I really need to do the fact checking before writing much about the legal aspects.
The bad ending is that we will lose public financing, and I am not sure how much this has to do with Citizens United and the Supremes. IANAL. But we did have, for several local election cycles, public financing, and it was great.
Demand adoption of the original 11th Amendment as proposed by Jefferson and Madison. Amputate the cancerous appendage created by this circus of a court protecting corporations as Taney protected the institution of slavery! We do not have to build a new path, to preserve our rights. Jefferson and Madison gave us a template. Let America shove it right down the gizzard of the corporate fascists who like the slave owner will used every trick in the book to protect a disgusting business model. Including initiating war, civil or otherwise to protect a way of life. As I recall it was not the civil right workers who initiated violence. It was the segregationist, descendant of slave-owner who used violence against Representative John Lewis. It was the slave-owner/Confederates who started civil war. Corporations and their governments are no different. Corporations would fight this 11th Amendment as proposed by the author of America’s Declaration of Independence from a King and his corrupt slime balls just as slave owners fought emancipation, via armed conflict. The biggest test of what our Founders envisioned has yet to come. People vs Corporate Aristocrats seeking to place humans in servile relationships. Like the Senate protecting unequal pay for woman. Collective yuckheads hiding behind process and unequal protection of law!
So in a short period less than 300 years, the essence of America’s Revolution, a dissent against a King and his corrupt cohorts in crime (East India Tea Corporation et als) is eviscerated by pro corporate slime sitting on a Supreme Court? Maybe we should all start drawing caricatures of the SJC pissing on the Declaration of Independence, Dred Scott, the Constitution, Jefferson and Madison and now the American people! What do we have the reincarnation of fucking Taney on this court?
It doesn’t matter which puppet is (s)elected as the next POTUS. Whoever gets nominated to the SCOTUS next will be confirmed by our one party Congress and will continue to rule in favor of the 1% to the detriment of the 99%. It’s not as if the SCOTUS isn’t another actor in the Kabuki Theatre that is the US govt. Has Nancy “The Prevaricator” Pelosi been taking courses in rhetoric from Obama?
What this country needs is a modern day John Brown.
Jefferson and Madison were not country bumpkins, and 1794 was not 10,000 BC. They saw these things on a near horizon, and considered them as Constitutional authors. All revisionism aside, this is a clear indication of how the founding fathers would view the juridical monstrosity of CU and this Court of Criminals.
Sure, she’ll talk about DARING to demand disclosure. Meanwhile, corporate personhood can sleep soundly tonight!
The only recourse we have is a Constitutional convention to call for an amendment wiping out this egregious, treasonous decision.